Freezewell Refrigeration Services (Private) Limited v Bard Real Estate (Private) Limited

In January and February 2002, the appellant Freezewell Refrigeration Services (Private) Limited repaired air conditioners and doors in a building complex owned by the Forestry Commission under a contract with the respondent Bard Real Estate (Private) Limited, an estate agent managing the property. When Freezewell presented invoices for work done and materials supplied, Bard Real Estate objected to the charges as unreasonably high. Bard paid $153,624.00 but refused to pay the outstanding balance of $403,156.00. On 14 March 2002, Freezewell instituted action claiming the outstanding amount and costs. Bard entered appearance to defend and pleaded that the charges were unreasonably high. Freezewell then applied for summary judgment, which was opposed. The High Court dismissed the summary judgment application with costs on a legal practitioner and client scale on 17 October 2002. On 31 October 2002, Freezewell filed a notice of appeal against the costs order.

• Whether the notice of appeal was fatally defective for failing to comply with Rule 29(1)(e) of the Rules of the Supreme Court
• Whether a defective notice of appeal that fails to state the exact nature of relief sought is a nullity
• Whether such defects can be condoned or whether an extension of time for filing a proper notice is required

The appeal was struck off the roll with costs.

A notice of appeal that fails to comply with the mandatory provisions of Rule 29(1)(e) of the Rules of the Supreme Court by not stating the exact nature of the relief sought is fatally defective and constitutes a nullity. Such a defect is incurably bad and cannot be remedied by condonation or amendment alone. The proper remedy is to apply for an extension of time within which to file a properly compliant notice of appeal, accompanied by an application for condonation for non-compliance with the Rules. In the absence of such an application, the appeal must be struck off the roll with costs.

The court's reference to the High Court's reasoning for dismissing the summary judgment application provides guidance on when summary judgment is inappropriate. The High Court had noted that where a respondent denies liability on grounds that charges are exorbitant, this discloses a bona fide defence. Where there is a factual dispute regarding verbal agreements and the reasonableness of charges requiring viva voce evidence, and where the sum claimed cannot be regarded as liquid as it is subject to proof, summary judgment should not be granted. However, these observations were not binding as they related to the High Court's decision which was not the subject of a properly constituted appeal.

This case reinforces the strict compliance required with the Rules of the Supreme Court regarding notices of appeal in Zimbabwe. It establishes that a notice of appeal failing to state the exact nature of relief sought is not merely irregular but a nullity that cannot be cured by simple condonation. The case clarifies the proper procedure for addressing such defects, requiring an application for extension of time to file a proper notice rather than attempting to amend or condone the defective notice. It demonstrates the courts' unwillingness to overlook procedural defects in appellate proceedings, emphasizing the importance of proper compliance with court rules.